I am a law and order conservative. The value of law and order is one of the things that I hold very high in politics. I am also a social conservative, but for me, the values of law and order, must come before morality. A governments job is to govern, not dictate moral law. Now, there are areas where the 2 sometimes overlap, and some would argue that Prop. 8 was one of those areas.
Today the California Supreme Court ruled, in a 6-1 decision, that Proposition 8 (Prop. 8 defined marriage as between 1 man and 1 woman) was legal, but that the marriages performed between the court’s previous ruling that same sex marriage was legal and the passage of Prop. 8 were still valid.
I wholeheartedly agree with this ruling. Personally, I disagree with same sex marriage, but you absolutely cannot pass and ex post facto law invalidating those marriages. To do so would be a travesty in American government history.
Now, before I begin, I’d like to point one thing out – in order to see this the way that I do, you must accept the court’s ruling that Proposition 8 was a Constitutional amendment, not a revision. For those of you unaware with California law, a Constitutional amendment can be passed through an initiative process, where the citizens vote on it as a whole. If it would have been a revision, it would have had to go through a longer process, and would not have been placed on the November 2008 ballot. If it would have been ruled a revision, Prop. 8 would not have been legally placed on the ballot and would have been thrown out as a technicality, not because it violated Constitutional rights. If you disagree with me/the Court on this, then we will never see eye to eye, and there’s no point arguing with each other. You can see the Court’s opinion on ruling it as an amendment in section III of the opinion.
There were 3 challenges to Prop. 8: the first was that it was a Constitutional revision, not amendment. The second was that it was a violation of the separation of powers. The last was brought up by the Attorney General – that it violated the “inalienable rights” clause of the California Constitution.
The whole 185 page document can be found here, but I’d like to quickly highlight some key points of the court’s opinion:
Neither the language of the relevant constitutional provisions, nor our past cases, support the proposition that any of these rights [Constitutional rights] is totally exempt from modification by a constitutional amendment adopted by a majority of the voters through the initiative process.
Basically – Constitutional rights are only valid unless amended.
The Attorney General argued that “Proposition 8 should be invalidated even if it is deemed to amend the Constitution because it abrogates fundamental rights protected by article I without a compelling interest.” To that, the Court said:
The Attorney General, in his briefing before this court, has advanced an alternative theory — not raised by petitioners in their initial petitions — under which he claims that even if Proposition 8 constitutes a constitutional amendment rather than a constitutional revision, that initiative measure nonetheless should be found invalid under the California Constitution on the ground that the “inalienable rights” embodied in article I, section 1 of that Constitution are not subject to “abrogation” by constitutional amendment without a compelling state interest. The Attorney General’s contention is flawed, however, in part because, likepetitioners’ claims, it rests inaccurately upon an overstatement of the effect of Proposition 8 on both the fundamental constitutional right of privacy guaranteed by article I, section 1, and on the due process and equal protection guarantees of article I, section 7. As explained below, Proposition 8 does not abrogate any of these state constitutional rights, but instead carves out a narrow exception applicable only to access to thedesignation of the term “marriage,” but not to any other of “the core set of basic substantive legal rights and attributes traditionally associated with marriage . . .” (Marriage Cases, supra, 43 Cal.4th at p. 781), such as the right to establish an officially recognized and protected family relationship with the person of one’s choice and to raise children within that family.
…Same-sex couples retain all of the fundamental substantive components encompassed within the constitutional rights of privacy and due process, with the sole (albeit significant) exception of the right to equal access to the designation “marriage,” a term that — for purposes of the California Constitution as it now reads — the people have decreed is to be reserved for an official union between a man and a woman. Although Proposition 8 does diminish the rights of same-sex couples under article I, section 1 in this one respect, it does not have the sweeping constitutional effect suggested by the Attorney General’s argument.…
Second, contrary to the implication of the Attorney General’s assertion, the circumstance that the rights listed in article I, section 1 — and in other sections of the Constitution — are identified as “inalienable” does not signify that such rights are totally exempt from any limitation or restriction.…
Third, the “inalienable” nature of a constitutional right never has been understood to preclude the adoption ofa constitutional amendment that limits or restricts the scope or application of such a right. As noted above (ante, at p. 44, fn. 12), from the beginnings of our state constitutional history, the right of the people “to alter or reform” the provisions of the Constitution itself has been understood to constitute one of the fundamental rights to which article I, section 1 refers (see 1849 Debates, supra, pp. 33-34), and California’s 1849 Constitution enshrined this right as an integral part of the original Declaration of Rights in former article I, section 2, which provided: “All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people; and they have the right to alter or reform the same, whenever the public good may require it.” (Italics added.)
a constitutional amendment that limits or restricts the scope or application of such a right. As noted above (ante, at p. 44, fn. 12), from the beginnings of our state constitutional history, the right of the people “to alter or reform” the provisions of the Constitution itself has been understood to constitute one of the fundamental rights to which article I, section 1 refers (see 1849 Debates, supra, pp. 33-34), and California’s 1849 Constitution enshrined this right as an integral part of the original Declaration of Rights in former article I, section 2, which provided: “All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people; and they have the right to alter or reform the same, whenever the public good may require it.” (Italics added.)
Again, similar to before – the court here basically says that instead of violating the Constitution, Prop. 8 amended the Constitution to make an exception of certain rights only in the situation of marriage.
And then we have the section where the Court says that the marriages already performed still stand:
Finally, we consider whether Proposition 8 affects the validity of the marriages of same-sex couples that were performed prior to the adoption of Proposition 8. Applying well-established legal principles pertinent to the question whether a constitutional provision should be interpreted to apply prospectively or retroactively, we conclude that the new section cannot properly be interpreted to apply retroactively. Accordingly, the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid and must continue to be recognized in this state.
Again, while I disagree with those marriages from a moral standpoint, I am glad that the court chose to uphold those marriages – it was the legally right thing to do.
The majority opinion ended with this:
In summary, we conclude that Proposition 8 constitutes a permissible constitutional amendment (rather than an impermissible constitutional revision), does not violate the separation of powers doctrine, and is not invalid under the “inalienable rights” theory proffered by the Attorney General. We further conclude that Proposition 8 does not apply retroactively and therefore that the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid.
Having determined that none of the constitutional challenges to the adoption of Proposition 8 have merit, we observe that if there is to be a change to the state constitutional rule embodied in that measure, it must “find its expression at the ballot box.”
Overall, I think this was a very legally sound opinion. I couldn’t agree more with the way that the California high court ruled on this. I see no way that the Court should have agreed with any of the 3 challenges, ESPECIALLY the challenges made by the Attorney General (someone who should have had a better legal mind than to make such blatantly dumb challenges, in my opinion).